united states v. richardson, 418 u.s. 166 (1974)

8/17/2019 United States v. Richardson, 418 U.S. 166 (1974)

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418 U.S. 166

94 S.Ct. 2940

41 L.Ed.2d 678

UNITED STATES et al., Petitioners,

v.William B. RICHARDSON.

No. 72—885.

Argued Oct. 10, 1973.

Decided June 25, 1974.

Syllabus

Respondent, as a federal taxpayer, brought this suit for the purpose of

obtaining a declaration of unconstitutionality of the Central Intelligence

Agency Act, which permits the CIA to account for its expenditures 'solely

on the certificate of the Director . . ..' 50 U.S.C. § 403j(b). The complaint

alleged that the Act violated Art. I, § 9, cl. 7, of the Constitution insofar as

that clause requires a regular statement and account of public funds. TheDistrict Court's dismissal of the complaint for, inter alia, respondent's lack

of standing under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d

947, was reversed by the Court of Appeals. That court held that

respondent had standing as a taxpayer on the ground that he satisfied

Flast's requirements that the allegations (1) challenge an enactment under

the Taxing and Spending Clause of Art. I, § 8, and show (2) a 'nexus'

between the plaintiff's status and a specific constitutional limitation on the

taxing and spending power. Held: Respondent lacks standing to maintainthis suit. Pp. 171—180.

(a) Flast, which stressed the need for meeting the requirements of Art. III,

did not 'undermine the salutary principle . . . established by Frothingham

(v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078) . . . that a taxpayer

may not 'employ a federal court as a forum in which to air his generalized

grievances about the conduct of government or the allocation of power in

the Federal System." Pp. 171—174.

(b) Respondent's challenge, not being addressed to the taxing or spending

power but to the statutes regulating the CIA's accounting and reporting


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procedures, provides no 'logical nexus' between his status as 'taxpayer' and

the asserted failure of Congress to require more detailed reports of

expenditures of the CIA. Pp. 174—175.

(c) Respondent's claim that without detailed information on the CIA's

expenditures he cannot properly follow legislative or executive action and

thereby fulfill his obligations as a voter is a generalized grievanceinsufficient under Frothingham or Flast to show that 'he has sustained or is

immediately in danger of sustaining a direct injury as the result' of such

action. Ex parte Le vitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493. Pp.

176—178.

465 F.2d 844, reversed.

Sol. Gen. Robert H. Bork for petitioners.

Osmond K. Fraenkel, New York City, for respondent.

Mr. Chief Justice BURGER delivered the opinion of the Court.

1 We granted certiorari in this case to determine whether the respondent has

standing to bring an action as a federal taxpayer 1 alleging that certain

provisions concerning public reporting of expenditures under the CentralIntelligence Agency Act of 1949, 63 Stat. 208, 50 U.S.C. § 403a et seq., violate

Art. I, § 9, cl. 7, of the Constitution which provides:

2 'No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law; and a regular Statement and Account of the

Receipts and Expenditures of all public Money shall be published from time to

time.'

3 Respondent brought this suit in the United States District Court on a complaint

in which he recites attempts to obtain from the Government information

concerning detailed expenditures of the Central Intelligence Agency.

According to the complaint, respondent wrote to the Government Printing

Office in 1967 and requested that he be provided with the documents 'published

by the Government in compliance with Article I, section 9, clause (7) of the

United States Constitution.' The Fiscal Service of the Bureau of Accounts of the

Department of the Treasury replied, explaining that it published the documentknown as the Combined Statement of Receipts, Expenditures, and Balances of

the United States Government. Several copies of the monthly and daily reports

of the office were sent with the letter. Respondent then wrote to the same office


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and, quoting part of the CIA Act, asked whether this statute did not 'cast

reflection upon the authenticity of the Treasury's Statement.' He also inquired

as to how he could receive further information on the expenditures of the CIA.

The Bureau of Accounts replied stating that it had no other available

information.

4 In another letter, respondent asserted that the CIA Act was repugnant to theConstitution and requested that the Treasury Department seek an opinion of the

Attorney General. The Department answered declining to seek such an opinion

and this suit followed. Respondent's complaint asked the court to 'issue a

permanent injunction enjoining the defendants from publishing their 'Combined

Statement of Receipts, Expenditures and Balances of the United States

Government' and representing it as the fulfillment of the mandates of Article I

Section 9 Clause 7 until same fully complies with those mandates.'2 In essence,

the respondent asked the federal court to declare unconstitutional that provisionof the Central Intelligence Agency Act which permits the Agency to account

for its expenditures 'solely on the certificate of the Director . . ..' 50 U.S.C. §

403j(b). The only injury alleged by respondent was that he 'cannot obtain a

document that sets out the expenditures and receipts' of the CIA but on the

contrary was 'asked to accept a fraudulent document.' The District Court

granted a motion for dismissal on the ground respondent lacked standing under

Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and that the

subject matter raised political questions not suited for judicial disposition.

5 The Court of Appeals sitting en banc, with three judges dissenting, reversed,

465 F.2d 844 (CA3 1972), holding that the respondent had standing to bring

this action.3 The majority relied chiefly on Flast v. Cohen, supra, and its two-

tier test that taxpayer standing rests on a showing of (a) a 'logical link' between

the status as a taxpayer and the challenged legislative enactment, i.e., an attack

on an enactment under the Taxing and Spending Clause of Art. I, § 8, of the

Constitution; and (b) a 'nexus' between the plaintiff's status and a specificconstitutional limitation imposed on the taxing and spending power. 392 U.S.,

at 102—103, 88 S.Ct., at 1953—1954. While noting that the respondent did not

directly attack an appropriations act, as did the plaintiff in Flast, the Court of

Appeals concluded that the CIA statute challenged by the respondent was

'integrally related,' 465 F.2d, at 853, to his ability to challenge the

appropriations since he could not question an appropriation about which he had

no knowledge. The Court of Appeals seemed to rest its holding on an

assumption that this case was a prelude to a later case challenging, on the basisof information obtained in this suit, some particular appropriation for or

expenditure of the CIA; respondent stated no such an intention in his complaint.

The dissenters took a different approach urging denial of standing principally


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because, in their view, respondent alleged no specific injury but only a general

interest common to all members of the public.

6 We conclude that respondent lacks standing to maintain a suit for the relief

sought and we reverse.

7 * As far back as Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), this

Court held that judicial power may be exercised only in a case properly before

it—a 'case or controversy' not suffering any of the limitations of the political-

question doctrine, not then moot or calling for an advisory opinion. In Baker v.

Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), this

limitation was described in terms that a federal court cannot

8 "pronounce any statute, either of the state or of the United States, void, becauseirreconcilable with the constitution, except as it is called upon to adjudge the

legal rights of litigants in actual controversies.' Liverpool, N.Y. & P. Steamship

Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28

L.Ed. 899.'

9 Recently in Association of Data Processing Service Organizations, Inc. v.

Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the Court, while

noting that '(g)eneralizations about standing to sue are largely worthless assuch,' id., at 151, 90 S.Ct., at 829, emphasized that '(o)ne generalization is,

however, necessary and that is that the question of standing in the federal courts

is to be considered in the framework of Article III which restricts judicial power

to cases' and 'controversies."4

10 Although the recent holding of the Court in Flast v. Cohen, supra, is a starting

point in an examination of respondent's claim to prosecute this suit as a

taxpayer, that case must be read with reference to its principal predecessor,Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). In

Frothingham, the injury alleged was that the congressional enactment

challenged as unconstitutional would, if implemented, increase the

complainant's future federal income taxes.5 Denying standing, the Frothingham

Court rested on the 'comparatively minute(,) remote, fluctuating and uncertain,'

id., at 487, 43 S.Ct., at 601, impact on the taxpayer, and the failure to allege the

kind of direct injury required for standing.

11 'The party who invokes the (judicial) power must be able to show not only that

the statute is invalid but that he has sustained or is immediately in danger of

sustaining some direct injury as the result of its enforcement, and not merely


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that he suffers in some indefinite way in common with people generally.' Id., at

488, 43 S.Ct., at 601.

12 When the Court addressed the question of standing in Flast, Mr. Chief Justice

Warren traced what he described as the 'confusion' following Frothingham as to

whether the Court had announced a constitutional doctrine barring sutis by

taxpayers challenging federal expenditures as unconstitutional or simply a policy rule of judicial self-restraint. In an effort to clarify the confusion and to

take into account intervening developments, of which class actions and joinder

under the Federal Rules of Civil Procedure were given as examples, the Court

embarked on 'a fresh examination of the limitations upon standing to sue in a

federal court and the application of those limitations to taxpayer suits.' 392

U.S., at 94, 88 S.Ct., at 1949. That re-examination led, however, to the holding

that a 'taxpayer will have standing consistent with Article III to invoke federal

judicial power when he alleges that congressional action under the taxing andspending clause is in derogation of those constitutional provisions which

operate to restrict the exercise of the taxing and spending power.' Id., at 105—

106, 88 S.Ct., at 1955 (Emphasis supplied.) In so holding, the Court

emphasized that Art. III requirements are the threshold inquiry:

13 'The 'gist of the question of standing' is whether the party seeking relief has

'alleged such a personal stake in the outcome of the controversy as to assure

that concrete adverseness . . . upon which the court so largely depends for illumination of difficult constitutional questions." Id., at 99, 88 S.Ct., at 1952,

citing Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703.

14 The Court then announced a two-pronged standing test which requires

allegations: (a) challenging an enactment under the Taxing and Spending

Clause of Art. I, § 8, of the Constitution; and (b) claiming that the challenged

enactment exceeds specific constitutional limitations imposed on the taxing and

spending power. 392 U.S., at 102—103, 88 S.Ct., at 1953—1954. While the

'impenetrable barrier to suits against Acts of Congress brought by individuals

who can assert only the interest of federal taxpayers,' id., at 85, 88 S.Ct., at

1944, had been slightly lowered, the Court made clear it was reaffirming the

principle of Frothingham precluding a taxpayer's use of 'a federal court as a

forum in which to air his generalized grievances about the conduct of

government or the allocation of power in the Federal System.' Id., at 106, 88

S.Ct., at 1956. The narrowness of that holding is emphasized by the concurring

opinion of Mr. Justice Stewart in Flast:

15 'In concluding that the appellants therefore have standing to sue, we do not

undermine the salutary principle, established by Frothingham and reaffirmed


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II

today, that a taxpayer may not 'employ a federal court as a forum in which to air

his generalized grievances about the conduct of government or the allocation of

power in the Federal System." (Citation omitted.) Id., at 114, 88 S.Ct., at 1960.

16 Although the Court made it very explicit in Flast that a 'fundamental aspect of standing' is that it focuses primarily on the party seeking to get his complaint

before the federal court rather than 'on the issues he wishes to have

adjudicated,' id., at 99, 88 S.Ct., at 1952, it made equally clear that

17 'in ruling on (taxpayer) standing, it is both appropriate and necessary to look to

the substantive issues for another purpose, namely, to determine whether there

is a logical nexus between the status asserted and the claim sought to be

adjudicated.' ibid., 88 S.Ct., at 1953.6

18 We therefore turn to an examination of the issues sought to be raised by

respondent's complaint to determine whether he is 'a proper and appropriate

party to invoke federal judicial power,' id., at 102, 88 S.Ct., at 1953, with

respect to those issues.

19 We need not and do not reach the merits of the constitutional attack on the

statute; our inquiry into the 'substantive issues' is for the limited purpose

indicated above. The mere recital of the respondent's claims and an

examination of the statute under attack demonstrate how far he falls short of the

standing criteria of Flast and how neatly he falls within the Frothingham

holding left undisturbed. Although the status he rests on is that he is a taxpayer,

his challenge is not addressed to the taxing or spending power, but to the

statutes regulating the CIA, specifically 50 U.S.C. § 403j(b). That section

provides different accounting and reporting requirements and procedures for

the CIA, as is also done with respect to other governmental agencies dealing in

confidential areas.7

20 Respondent makes no claim that appropriated funds are being spent in

violation of a 'specific constitutional limitation upon the . . . taxing and

spending power . . ..' 392 U.S., at 104, 88 S.Ct., at 1954. Rather, he asks the

courts to compel the Government to give him information on precisely how the

CIA spends its funds. Thus there is no 'logical nexus' between the asserted

status of taxpayer and the claimed failure of the Congress to require the

Executive to supply a more detailed report of the expenditures of that agency.8


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III

the standards for taxpayer standing set forth in Flast; we hold they do not.

Respondent is seeking 'to employ a federal court as a forum in which to air his

generalized grievances about the conduct of government.' 392 U.S., at 106, 88

S.Ct., at 1956. Both Frothingham and Flast, supra, reject that basis for standing.

22 The Court of Appeals held that the basis of taxpayer standing

23 'need not always be the appropriation and the spending of (taxpayer's) money

for an invalid purpose. The personal stake may come from an injury in fact

even if it is not directly economic in nature. Association of Data Processing

Organizations, Inc. v. Camp, (397 U.S. 150) 154, 90 S.Ct. 827, 25 L.Ed.2d 184

(1970).' 465 F.2d, at 853.9

24 The respondent's claim is that without detailed information on CIA

expenditures—and hence its activities—he cannot intelligently follow the

actions of Congress or the Executive, nor can he properly fulfill his obligations

as a member of the electorate in voting for candidates seeking national office.

25 This is surely the kind of a generalized grievance described in both

Frothingham and Flast since the impact on him is plainly undifferentiated and'common to all members of the public.' Ex parte Le vitt, 302 U.S. 633, 634, 58

S.Ct. 1, 82 L.Ed. 493 (1937); Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318,

2325, 33 L.Ed.2d 154 (1972). While we can hardly dispute that this respondent

has a genuine interest in the use of funds and that his interest may be prompted

by his status as a taxpayer, he has not alleged that, as a taxpayer, he is in danger

of suffering any particular concrete injury as a result of the operation of this

statute. As the Court noted in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct.

1361, 31 L.Ed.2d 636 (1972):

26 '(A) mere 'interest in a problem,' no matter how long-standing the interest and

no matter how qualified the organization is in evaluating the problem, is not

sufficient by itself to render the organization 'adversely affected' or 'aggrieved'

within the meaning of the APA.' Id., at 739, 92 S.Ct., at 1368.

27 Ex parte Le vitt, supra, is especially instructive. There Le vitt sought to

challenge the validity of the commission of a Supreme Court Justice who had been nominated and confirmed as such while he was a member of the Senate.

Le vitt alleged that the appointee had voted for an increase in the emoluments

provided by Congress for Justices of the Supreme Court during the term for


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which he was last elected to the United States Senate. The claim was that the

appointment violated the explicit prohibition of Art. I, § 6, cl. 2, of the

Constitution.10 The Court disposed of Le vitt's claim, stating:

28 'It is an established principle that to entitle a private individual to invoke the

judicial power to determine the validity of executive or legislative action he

must show that he has sustained or is immediately in danger of sustaining adirect injury as the result of that action and it is not sufficient that he has merely

a general interest common to all members of the public.' 302 U.S., at 634, 58

S.Ct., at 1. (Emphasis supplied.)

29 Of course, if Le vitt's allegations were true, they made out an arguable violation

of an explicit prohibition of the Constitution. Yet even this was held

insufficient to support standing because, whatever Le vitt's injury, it was one he

shared with 'all members of the public.' Respondent here, like the petitioner in

Le vitt, also fails to clear the threshold hurdle of Baker v. Carr, 369 U.S., at

204, 82 S.Ct., at 703. See supra, at 171, and Flast, supra.11

30 It can be argued that if respondent is not permitted to litigate this issue, no one

can do so. In a very real sense, the absence of any particular individual or class

to litigate these claims gives support to the argument that the subject matter is

committed to the surveillance of Congress, and ultimately to the political

process. Any other conclusion would mean that the Founding Fathers intended

to set up something in the nature of an Athenian democracy or a New England

town meeting to oversee the conduct of the National Government by means of

lawsuits in federal courts. The Constitution created a representative

Government with the representatives directly responsible to their constituents at

stated periods of two, four, and six years; that the Constitution does not afford a

judicial remedy does not, of course, completely disable the citizen who is not

satisfied with the 'ground rules' established by the Congress for reporting

expenditures of the Executive Branch. Lack of standing within the narrow

confines of Art. III jurisdiction does not impair the right to assert his views in

the political forum or at the polls. Slow, cumbersome, and unresponsive though

the traditional electoral process may be thought at times, our system provides

for changing members of the political branches when dissatisfied citizens

convince a sufficient number of their fellow electors that elected representatives

are delinquent in performing duties committed to them.

31 As our society has become more complex, our numbers more vast, our lives

more varied, and our resources more strained, citizens increasingly request the

intervention of the courts on a greater variety of issues than at any period of our

national development. The acceptance of new categories of judicially


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cognizable injury has not eliminated the basic principle that to invoke judicial

power the claimant must have a 'personal stake in the outcome,' Baker v. Carr,

supra, at 204, 82 S.Ct., at 703, or a 'particular, concrete injury,' Sierra Club,

supra, 405 U.S., at 740—741, n. 16, 92 S.Ct., at 1369, or 'a direct injury,' Ex

parte Le vitt, supra, 302 U.S., at 634, 58 S.Ct., at 1; in short, something more

than 'generalized grievances,' Flast, supra, 392 U.S., at 106, 88 S.Ct., at 1956.

Respondent has failed to meet these fundamental tests; accordingly, the judgment of the Court of Appeals is reversed.

32 Reversed.

33 Mr. Justice POWELL, concurring.

34 I join the opinion of the Court because I am in accord with most of its analysis, particularly insofar as it relies on traditional barriers against federal taxpayer or

citizen standing. And I agree that Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942,

20 L.Ed.2d 947 (1968), which set the boundaries for the arguments of the

parties before us, is the most directly relevant precedent and quite correctly

absorbs a major portion of the Court's attention. I write solely to indicate that I

would go further than the Court and would lay to rest the approach undertaken

in Flast. I would not overrule Flast on its facts, because it is now settled that

federal taxpayer standing exists in Establishment Clause cases. I would not,

however, perpetuate the doctrinal confusion inherent in the Flast two-part

'nexus' test. That test is not a reliable indicator of when a federal taxpayer has

standing, and it has no sound relationship to the question whether such a

plaintiff, with no other interest at stake, should be allowed to bring suit against

one of the branches of the Federal Government. In my opinion, it should be

abandoned.

35 * My difficulties with Flast are several. The opinion purports to separate the

question of standing from the merits, id., at 99 101, 88 S.Ct., at 1952—1953,

yet it abruptly returns to the substantive issues raised by a plaintiff for the

purpose of determining 'whether there is a logical nexus between the status

asserted and the claim sought to be adjudicated.' Id., at 102, 88 S.Ct., at 1953.

Similarly, the opinion distinguishes between constitutional and prudential

limits on standing. Id., at 92—94, 97, 88 S.Ct., at 1948. I find it impossible,

however, to determine whether the two-part 'nexus' test created in Flast

amounts to a constitutional or a prudential limitation, because it has no

meaningful connection with the Court's statement of the bare-minimum

constitutional requirements for standing.

36 Drawin u on Baker v. Carr 36 U.S. 186 204 82 S.Ct. 6 1 03 L.Ed.2d


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. , . . , , . . , , . .

663 (1962), the Court in Flast stated the "gist of the question of standing" as

'whether the party seeking relief has 'alleged such a personal stake in the

outcome of the controversy as to assure that concrete adverseness which

sharpens the presentation of issues upon which the court so largely depends for

illumination of difficult constitutional questions." 392 U.S., at 99, 88 S.Ct., at

1952. As the Court today notes, ante, at 173, this is now the controlling

definition of the irreducible Art. III case-or-controversy requirements for standing.1 But, as Mr. Justice Harlan pointed out in his dissent in Flast, 392

U.S., at 116 et seq., 88 S.Ct., at 1961, it is impossible to see how an inquiry

about the existence of 'concrete adverseness' is furthered by an application of

the Flast test.

37 Flast accounced the following two-part 'nexus' test:

38 'The nexus demanded of federal taxpayers has two aspects to it. First, the

taxpayer must establish a logical link between that status and the type of

legislative enactment attacked. Thus, a taxpayer will be a proper party to allege

the unconstitutionality only of exercises of congressional power under the

taxing and spending clause of Art. I, § 8, of the Constitution. It will not be

sufficient to allege an incidental expenditure of tax funds in the administration

of an essentially regulatory statute. . . . Secondly, the taxpayer must establish a

nexus between that status and the precise nature of the constitutional

infringement alleged. Under this requirement, the taxpayer must show that the

challenged enactment exceeds specific constitutional limitations imposed upon

the exercise of the congressional taxing and spending power and not simply

that the enactment is generally beyond the powers delegated to Congress by

Art. I, § 8. When both nexuses are established, the litigant will have shown a

taxpayer's stake in the outcome of the controversy and will be a proper and

appropriate party to invoke a federal court's jurisdiction.' Id., at 102—103, 88

S.Ct., at 1954.

39 Relying on history, the Court identified the Establishment Clause as a specific

constitutional limitation upon the exercise by Congress of the taxing and

spending power conferred by Art. I, § 8. 392 U.S., at 103—105, 88 S.Ct., at

1954 1955. On the other hand, the Tenth Amendment, and apparently the Due

Process Clause of the Fifth Amendment, were determined not to be such

'specific' limitations. The bases for these determinations are not wholly clear,

but it appears that the Court found the Tenth Amendment addressed to the

interests of the States, rather than of taxpayers, and the Due Process Clause no

protection against increases in tax liability. Id., at 105, 88 S.Ct., at 1955.

40 In m o inion Mr. Justice Harlan's criti ue of the Flast 'nexus' test is


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, .

unanswerable. As he pointed out, 'the Court's standard for the determination of

standing (i.e., sufficiently concrete adverseness) and its criteria for the

satisfaction of that standard are entirely unrelated.' Id., at 122, 88 S.Ct., at 1964.

Assuming that the relevant constitutional inquiry is the intensity of the

plaintiff's concern, as the Court initially posited, Id., at 99, 88 S.Ct., at 1952,

the Flast criteria 'are not in any sense a measurement of any plaintiff's interest in

the outcome of any suit. Id., at 121, 88 S.Ct., at 1964 (Harlan, J., dissenting). A plaintiff's incentive to challenge an expenditure does not turn on the

'unconnected fact' that it relates to a regulatory rather than a spending program,

id., at 122, 88 S.Ct., at 1964, or on whether the constitutional provision on

which he relies is a 'specific limitation' upon Congress' spending powers. Id., at

123, 88 S.Ct., at 1965.2

41 The ambiguities inherent in the Flast '(exus' limitations on federal taxpayer

standing are illustrated by this case. There can be little doubt about respondent's

fervor in pursuing his case, both within administrative channels and at every

level of the federal courts. The intensity of his interest appears to bear no

relationship to the fact that, literally speaking, he is not challenging directly a

congressional exercise of the taxing and spending power. On the other hand, if

the involvement of the taxing and spending power has some relevance, it

requires no great leap in reasoning to conclude that the Statement and Account

Clause, Art. I, § 9, cl. 7, on which respondent relies, is inextricably linked to

that power. And that Clause might well be seen as a 'specific' limitation oncongressional spending. Indeed, it could be viewed as the most democratic of

limitations. Thus, although the Court's application of Flast to the instant case is

probably literally correct, adherence to the Flast test in this instance suggests, as

does Flast itself, that the test is not a sound or logical limitation on standing.

42 The lack of real meaning and of principled content in the Flast 'nexus' test

renders it likely that it will in time collapse of its own weight, as Mr. Justice

Douglas predicted in his concurring opinion in that case. 392 U.S. at 107, 88

S.Ct., at 1956. This will present several options for the Court. It may either

reaffirm pre-Flast prudential limitations on federal and citizen taxpayer

standing; attempt new doctrinal departures in this area, as would Mr. Justice

STEWART, post, at 203—204; or simply drop standing barriers altogether, as,

judging by his concurring opinion in Flast, supra, and his dissenting opinion

today, would Mr. Justice DOUGLAS.3 I believe the first option to be the

appropriate course, for reasons which may be emphasized by noting the

difficulties I see with the other two. And, while I do not disagree at this latedate with the Baker v. Carr statement of the constitutional indicia of standing, I

further believe that constitutional limitations are not the only pertinent

considerations.


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II

43 Mr. Justice STEWART, joined by Mr. Justice MARSHALL, would grant

citizen or taxpayer standing under those clauses of the Constitution that impose

on the Federal Government 'an affirmative duty' to do something on behalf of

its citizens and taxpayers. Post, at 203—204. Although he distinguishes

between an affirmative constitutional duty and a 'constitutional prohibition' for purposes of this case, post, at 202, it does not follow that Mr. Justice

STEWART would deny federal taxpayer standing in all cases involving a

constitutional prohibition, as his concurring opinion in Flast makes clear.4

Rather, he would find federal taxpayer standing and perhaps citizen standing, in

all cases based on constitutional clauses setting forth an affirmative duty and in

unspecified cases where the constitutional clause at issue may be seen as a

plain or explicit prohibition.

44 For purposes of determining whether a taxpayer or citizen has standing to

challenge the actions of the Federal Government, I fail to perceive a meaningful

distinction between constitutional clauses that set forth duties and those that set

forth prohibitions.5 In either instance, the relevant inquiry is the same—may a

plaintiff, relying no nothing other than citizen or taxpayer status, bring suit to

adjudicate whether an entity of the Federal Government is carrying out its

responsibilities in conformance with the requirements of the Constitution? A

taxpayer's or citizen's interest in and willingness to pursue with vigor such a suitwould not turn on whether the constitutional clause at issue imposed a duty on

the Government to do something for him or prohibited the Government from

doing something to him. Prohibitions and duties in this context are opposite

sides of the same coin. Thus, I do not believe that the inquiry whether federal

courts should entertain public actions is advanced by line drawing between

affirmative duties and prohibitions.6

45 In short, in my opinion Brother STEWART's view fails to provide a meaningful

stopping point between an all-or-nothing position with regard to federal

taxpayer or citizen standing. In this respect, it shares certain of the deficiencies

of Flast. I suspect that this may also be true of any intermedia position in this

area. Mr. Justice DOUGLAS correctly discerns, I think, that the alternatives

here as a matter of doctrine are essentially bipolar. His preference is clear: 'I

would be as liberal in allowing taxpayers standing to object to . . . violations of

the First Amendment as I would in granting standing to people to complain of

any invasion of their rights under the Fourth Amendment or the Fourteenth or under any other guarantee in the Constitution itself or in the Bill of Rights.'

Flast v. Cohen, 392 U.S., at 114, 88 S.Ct., at 1959 (concurring opinion). My

view is to the contrary.


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III

46 Relaxation of standing requirements is directly related to the expansion of

judicial power.7 It seems to me inescapable that allowing unrestricted taxpayer

or citizen standing would significantly alter the allocation of power at the

national level, with a shift away from a democratic form of government. I also

believe that repeated and essentially head-on confrontations between thelifetenured branch and the representative branches of government will not, in

the long run, be beneficial to either. The public confidence essential to the

former and the vitality critical to the latter may well erode if we do not exercise

self-restraint in the utilization of our power to negative the actions of the other

branches. We should be ever mindful of the contradictions that would arise if a

democracy were to permit general oversight of the elected branches of

government by a nonrepresentative, and in large measure insulated, judicial

branch.8 Moreover, the argument that the Court should allow unrestrictedtaxpayer or citizen standing underestimates the ability of the representative

branches of the Federal Government to respond to the citizen pressure that has

been responsible in large measure for the concurrent drift toward expanded

standing. Indeed, taxpayer or citizen advocacy, given its potentially broad base,

is precisely the type of leverage that in a democracy ought to be employed

against the branches that were intended to be responsive to public attitudes

about the appropriate operation of government. 'We must as judges recall that,

as Mr. Justice Holmes wisely observed, the other branches of the Government'are ultimate guardians of the liberties and welfare of the people in quite as great

a degree as the courts.' Missouri, Kansas & Texas R. Co. v. May, 194 U.S. 267,

270, 24 S.Ct. 638, 48 L.Ed. 971.' Flast v. Cohen, 392 U.S., at 131, 88 S.Ct., at

1968 (Harlan, J., dissenting).

47 Unrestrained standing in federal taxpayer or citizen suits would create a

remarkably illogical system of judicial supervision of the coordinate branches

of the Federal Government. Randolph's proposed Council of Revision, whichwas repeatedly rejected by the Framers, at least had the virtue of being

systematic; every law passed by the legislature automatically would have been

previewed by the Judiciary before the law could take effect.9 On the other

hand, since the Judiciary cannot select the taxpayers or citizens who bring suit

or the nature of the suits, the allowance of public actions would produce uneven

and sporadic review, the quality of which would be influenced by the resources

and skill of the particular plaintiff. And issues would be presented in abstract

form, contrary to the Court's recognition that 'judicial review is effectivelargely because it is not available simply at the behest of a partisan faction, but

is exercised only to remedy a particular, concrete injury.' Sierra Club v. Morton,

405 U.S. 727, 740—741, n. 16, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972).10


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48 The power recognized in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60

(1803), is a potent one. Its prudent use seems to me incompatible with

unlimited notions of taxpayer and citizen standing. Were we to utilize this

power as indiscriminately as is now being urged, we may witness efforts by the

representative branches drastically to curb its use. Due to what many have

regarded as the unresponsiveness of the Federal Government to recognized

needs or serious inequities in our society, recourse to the federal courts hasattained an unprecedented popularity in recent decades. Those courts have often

acted as a major instrument of social reform. But this has not always been the

case, as experiences under the New Deal illustrate. The public reaction to the

substantive due process holdings of the federal courts during that period

requires no elaboration, and it is not unusual for history to repeat itself.

49 Quite apart from this possibility, we risk a progressive impairment of the

effectiveness of the federal courts if their limited resources are divertedincreasingly from their historic role to the resolution of public-interest suits

brought by litigants who cannot distinguish themselves from all taxpayers or all

citizens. The irreplaceable value of the power articulated by Mr. Chief Justice

Marshall lies in the protection it has afforded the constitutional rights and

liberties of individual citizens and minority groups against oppressive or

discriminatory government action. It is this role, not some amorphous, general

supervision of the operations of government, that has maintained public esteem

for the federal courts and has permitted the peaceful coexistence of thecuntermajoritarian implications of judicial review and the democratic principles

upon which our Federal Government in the final analysis rests.

50 The considerations outlined above underlie, I believe, the traditional hostility of

the Court to federal taxpayer or citizen standing where the plaintiff has nothing

at stake other than his interest as a taxpayer or citizen. It merits noting how

often and how unequivocally the Court has expressed its antipathy to efforts to

convert the Judiciary into an open forum for the resolution of political or ideological disputes about the performance of government. See, e.g., Ex parte

Le vitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937);11 Frothingham v.

Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923);12

Fairchild v. Hughes, 258 U.S. 126, 129, 42 S.Ct. 274, 275, 66 L.Ed. 499

(1922);13 Tyler v. Judges of Court of Registration, 179 U.S. 405, 406, 21 S.Ct.

206, 207, 45 L.Ed. 252 (1900).14 These holdings and declarations reflect a wise

view of the need for judicial restraint if we are to preserve the Judiciary as the

branch 'least dangerous to the political rights of the Constitution . . ..' Federalist No. 78, p. 483 (Lodge ed. 1908).

51 To be sure, standing barriers have been substantially lowered in the last three


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decades. The Court has confirmed the power to Congress to open the federal

courts to representatives of the public interest through specific statutory grants

of standing. E.g., FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct.

693, 84 L.Ed. 869 (1940); Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62

S.Ct. 875, 86 L.Ed. 1229 (1942); Flast v. Cohen, 392 U.S., at 130—133, 88

S.Ct., at 1968—1970 (Harlan, J., dissenting); Trafficante v. Metropolitan Life

Insurance Co., 409 U.S. 205, 212, 93 S.Ct. 364, 368, 34 L.Ed.2d 415 (1972)(White, J., concurring). Even in the absence of specific statutory grants of

standing, economic interests that at one time would not have conferred standing

have been re-examined and found sufficient. Compare, e.g., Association of Data

Processing Service Organizations, Ins. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25

L.Ed.2d 184 (1970), and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25

L.Ed.2d 192 (1970), with e.g., Tennessee Electric Power Co. v. TVA, 306 U.S.

118, 59 S.Ct. 366, 83 L.Ed. 543 (1939), and Alabama Power Co. v. Ickes, 302

U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938). See also Investment Co. Institutev. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Arnold Tours,

Inc. v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970). Noneconomic

interests have been recognized. E.g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691,

7 L.Ed.2d 663 (1962); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31

L.Ed.2d 636 (1972). A stringently limited exception for federal taxpayer

standing has been created. Flast v. Cohen, supra. The concept of particularized

injury has been dramatically diluted. E.g., United States v. SCRAP, 412 U.S.

669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

52 The revolution in standing doctrine that has occurred, particularly in the 12

years since Baker v. Carr, supra, has not meant, however, that standing barriers

have disappeared altogether. As the Court noted in Sierra Club, 'broadening the

categories of injury that may be alleged in support of standing is a different

matter from abandoning the requirement that the party seeking review must

himself have suffered an injury.' 405 U.S., at 738, 92 S.Ct., at 1368. Accord,

Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d536 (1973).15 Indeed, despite the diminution of standing requirements in the

last decade, the Court has not broken with the traditional requirement that, in

the absence of a specific statutory grant of the right of review, a plaintiff must

allege some particularized injury that sets him apart from the man on the

street.16

53 I recognize that the Court's allegiance to a requirement of particularized injury

has on occasion required a reading of the concept that threatens to transform it beyond recognition. E.g., Baker v. Carr, supra; Flast v. Cohen, supra.17 But

despite such occasional digressions, the requirement remains, and I think it does

so for the reasons outlined above. In recognition of those considerations, we


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should refuse to go the last mile toward abolition of standing requirements that

is implicit in broadening the 'precarious opening 'for federal taxpayers created

by Flast, see 392 U.S., at 116, 88 S.Ct., at 1961 (Fortas, J., concurring), or in

allowing a citizen qua citizen to invoke the power of the federal courts to

negative unconstitutional acts of the Federal Government.

54 In sum, I believe we should limit the expansion of federal taxpayer and citizenstanding in the absence of specific statutory authorization to an outer boundary

drawn by the results in Flast and Baker v. Carr. I think we should face up to the

fact that all such suits are an effort 'to employ a federal court as a forum in

which to air . . . generalized grievances about the conduct of government or the

allocation of power in the Federal System.' Flast v. Cohen, 392 U.S., at 106, 88

S.Ct., at 1956. The Court should explicitly reaffirm traditional prudential

barriers against such public actions.18 My reasons for this view are rooted in

respect for democratic processes and in the conviction that '(t)he powers of thefederal judiciary will be adequate for the great burdens placed upon them only

if they are employed prudently, with recognition of the strengths as well as the

hazards that go with out kind of representative government.' Id., at 131, 88

S.Ct., at 1968 (Harlan, J., dissenting).

55 Mr. Justice DOUGLAS, dissenting.

56 I would affirm the judgment of the Court of Appeals on the 'standing' issue. My

views are expressed in my dissent to the Schlesinger case, 418 U.S. 208, 229,

94 S.Ct. 2925, 2936, 41 L.Ed.2d 706, decided this day. There a citizen and

taxpayer raised a question concerning the Incompatibility Clause of the

Constitution which bars a person from 'holding any Office under the United

States' if he is a Member of Congress, Art. I, § 6, cl. 2. That action was

designed to bring the Pentagon into line with that constitutional requirement by

requiring it to drop 'reservists' who were Members of Congress.

57 The present action involves Art. I, § 9, cl. 7, of the Constitution which

provides:

58 'No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law; and a regular Statement and Account of the

Receipts and Expenditures of all public Money shall be published from time to

time.'

59 We held in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, that a

taxpayer had 'standing' to challenge the constitutionality of taxes raised to


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finance the establishment of a religion contrary to the command of the First and

Fourteenth Amendments. A taxpayer making such outlays, we held, had

sufficient 'personal stake' in the controversy, Baker v. Carr, 369 U.S. 186, 204,

82 S.Ct. 691, 703, 7 L.Ed.2d 663, to give the case the 'concrete adverseness'

necessary for the resolution of constitutional issues. Ibid.

60 Respondent in the present case claims that he has a right to 'a regular statementand account' of receipts and expenditures of public moneys for the Central

Intelligence Agency. As the Court of Appeals noted, Flast recognizes 'standing'

of a taxpayer to challenge appropriations made in the face of a constitutional

prohibition, and it logically asks, 'how can a taxpayer make that challenge

unless he knows how the money is being spent?' 465 F.2d 844, 853.

61 History shows that the curse of government is not always venality; secrecy is

one of the most tempting coverups to save regimes from criticism. As the Court

of Appeals said:

62 'The Framers of the Constitution deemed fiscal information essential if the

electorate was to exercise any control over its representatives and meet their

new responsibilities as citizens of the Republic; and they mandated publication,

although stated in general terms, of the Government's receipts and

expenditures. Whatever the ultimate scope and extent of that obligation, its

elimination generates a sufficient, adverse interest in a taxpayer.' Ibid.

(Footnote omitted.)

63 Whatever may be the merits of the underlying claim, it seems clear that the

taxpayer in the present case is not making a generalized complaint about the

operation of Government. He does not even challenge the constitutionality of

the Central Intelligence Agency Act. He only wants to know the amount of tax

money exacted from him that goes into CIA activities. Secrecy of the

Government acquires new sanctity when his claim is denied. Secrecy has, of

course, some constitutional sanction. Article I, § 5, cl. 3, provides that 'Each

House shall keep a Journal of its Proceedings, and from time to time publish the

same, excepting such Parts as may in their Judgment require Secrecy . . ..' But

the difference was great when it came to an accounting of public money.

Secrecy was the evil at which Art. I, § 9, cl. 7, was aimed. At the Convention,

Mason took the initiative in moving for an annual account of public

expenditures. 2 M. Farrand, The Records of the Federal Convention of 1787, p.

618 (1911). Madison suggested it be 'from time to time,' id., at 618—619,

because it was thought that requiring publication at fixed intervals might lead

to no publication at all. Indeed under the Articles of Confederation '(a) punctual

compliance being often impossible, the practice ha(d) ceased altogether.' Id., at


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619.

64 During the Maryland debates on the Constitution, McHenry said: '(T)he People

who give their Money ought to know in what manner it is expended,' 3 Farrand,

supra, at 150. In the Virginian debates Mason expressed his belief that while

some matters might require secrecy (e.g., ongoing diplomatic negotiations and

military operations) 'he did not conceive that the receipts and expenditures of the public money ought ever to be concealed. The people, he affirmed, had a

right to know the expenditures of their money.' 3 J. Elliot, Debates on the

Federal Constitution 459 (1836). Lee said that the clause 'must be supposed to

mean, in the common acceptation of language, short, convenient periods' and

that those 'who would neglect this provision would disobey the most pointed

directions.' Ibid. Madison added that an accounting from 'time to time' insured

that the accounts would be 'more full and satisfactory to the public, and would

be sufficiently frequent.' Id., at 460. Madison thought 'this provision wentfarther than the constitution of any state in the Union, or perhaps in the world.'

Ibid. In New York Livingston said: 'Will not the representatives . . . consider it

as essential to their popularity, to gratify their constituents with full and

frequent statements of the public accounts? There can be no doubt of it,' 2

Elliot, supra, at 347.*

65 From the history of the clause it is apparent that the Framers inserted it in the

Constitution to give the public knowledge of the way public funds areexpended. No one has a greater 'personal stake' in policing this protective

measure than a taxpayer. Indeed, if a taxpayer may not raise the question, who

may do so? The Court states that discretion to release information is in the first

instance 'committed to the surveillance of Congress,' and that the right of the

citizenry to information under Art. I, § 9 cl. 7, cannot be enforced directly, but

only through the (s)low cumbersome, and unresponsive' electoral process. One

has only to read constitutional history to realize that statement would shock

Mason and Madison. Congress of course has discretion; but to say that it hasthe power to read the clause out of the Constitution when it comes to one or

two or three agencies is astounding. That is the bare-bones issue in the present

case. Does Art. I, § 9, cl. 7, of the Constitution permit Congress to withhold 'a

regular Statement and Account' respecting any agency it chooses? Respecting

all federal agencies? What purpose, what function is the clause to perform

under the Court's construction? The electoral process already permits the

removal of legislators for any reason. Allowing their removal, at the polls for

failure to comply with Art. I, § 9, cl. 7, effectively reduces that clause to anullity, giving it no purpose at all.

66 The sovereign in this Nation is the people, not the bureaucracy. The statement


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of accounts of public expenditures goes to the heart of the problem of

sovereignty. If taxpayers may not ask that rudimentary question, their

sovereignty becomes an empty symbol and a secret bureaucracy is allowed to

run our affairs.

67 The resolution of that issue has not been entrusted to one of the other coordinate

branches of government—the test of the 'political question' under Baker v. Carr,369 U.S., at 217, 82 S.Ct., at 710. The question is 'political' if there is 'a

textually demonstrable constitutional commitment of the issue to a coordinate

political department,' Ibid. The mandate runs to the Congress and to the

agencies it creates to make 'a regular Statement and Account of the Receipts

and Expenditures of all public Money.' The beneficiary—as is abundantly clear

from the constitutional history—is the public. The public cannot intelligently

know how to exercise the franchise unless it has a basic knowledge concerning

at least the generality of the accounts under every head of government. Nogreater crisis in confidence can be generated than today's decision. It §

consequences are grave because it relegates to secrecy vast operations of

government and keeps the public from knowing what secret plans concerning

this Nation or other nations are afoot. The fact that the result is serious does

not, of course, make the issue 'justiciable.' But resolutions of any doubts or

abmiguities should be toward protecting an individual's stake in the integrity of

constitutional guarantees rather than turning him away without even a chance to

be heard.

68 I would affirm the judgment below.

69 Mr. Justice STEWART, with whom Mr. Justice MARSHALL joins, dissenting.

70 The Court's decisions in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d

947 (1968), and Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed.

1078 (1923), throw every little light on the question at issue in this case. For,

unlike the plaintiffs in those cases, Richardson did not bring this action asking a

court to invalidate a federal statute on the ground that it was beyond the

delegated power of Congress to enact or that it contravened some constitutional

prohibition. Richardson's claim is of an entirely different order. It is that Art. I,

§ 9, cl. 7, of the Constitution, the Statement and Account Clause, gives him a

right to receive, and imposes on the Government a corresponding affirmative

duty to supply, a periodic report of the receipts and expenditures 'of all public

Money.'1 In support of his standing to litigate this claim, he has asserted his

status both as a taxpayer and as a citizen-voter. Whether the Statement and

Account Clause imposes upon the Government an affirmative duty to supply

the information requested and whether that duty runs to every taxpayer or


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citizen are questions that go to the substantive merits of this litigation. Those

questions are not now before us, but I think that the Court is quite wrong in

holding that the respondent was without standing to raise them in the trial court.

71 Seeking a determination that the Government owes him a duty to supply the

information he has requested, the respondent is in the position of a traditional

Hohfeldian plaintiff.2 He contends that the Statement and Account Clausegives him a right to receive the information and burdens the Government with a

correlative duty to supply it. Courts of law exist for the resolution of such right-

duty disputes. When a party is seeking a judicial determination that a defendant

owes him an affirmative duty, it seems clear to me that he has standing to

litigate the issue of the existence vel non of this duty once he shows that the

defendant has declined to honor his claim. If the duty in question involved the

payment of a sum of money, I suppose that all would agree that a plaintiff

asserting the duty would have standing to litigate the issue of his entitlement tothe money upon a showing that he had not been paid. I see no reason for a

different result when the defendant is a Government official and the asserted

duty relates not to the payment of money, but to the disclosure of items of

information.

72 When the duty relates to a very particularized and explicit performance by the

asserted obligor, such as the payment of money or the rendition of specific

items of information, there is no necessity to resort to any extended analysis,such as the Flast nexus tests, in order to find standing in the obligee. Under such

circumstances, the duty itself, running as it does from the defendant to the

plaintiff, provides fully adequate assurance that the plaintiff is not seeking to

'employ a federal court as a forum in which to air his generalized grievances

about the conduct of government or the allocation of power in the Federal

System.' Flast, supra, 392 U.S., at 106, 88 S.Ct., at 1956. If such a duty arose in

the context of a contract between private parties, no one would suggest that the

obligee should be barred from the courts. It seems to me that when the assertedduty is, as here, as particularized, palpable, and explicit as those which courts

regularly recognize in private contexts, it should make no difference that the

obligor is the Government and the duty is embodied in our organic law.

Certainly after United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37

L.Ed.2d 254 (1973), it does not matter that those to whom the duty is owed

may be many. '(S)tanding is not to be denied simply because many people

suffer the same injury.' Id., at 687, 93 S.Ct., at 2416.

73 For example, the Freedom of Information Act creates a private cause of action

for the benefit of persons who have requested certain records from a public

agency and whose request has been denied. 5 U.S.C. § 552(a)(3). The statute


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requires nothing more than a request and the denial of that request as a

predicate to a suit in the district court. The provision purports to create a duty in

the Government agency involved to make those records covered by the statute

available to 'any person.' Correspondingly, it confers a right on 'any person' to

receive those records, subject to published regulations regarding time, place,

fees, and procedure. The analogy, of course, is clear. If the Court is correct in

this case in holding that Richardson lacks standing under Art. III to litigate hisclaim that the Statement and Account Clause imposes an affirmative duty that

runs in his favor, it would follow that a person whose request under 5 U.S.C. §

552 has been denied would similarly lack standing under Art. III despite the

clear intent of Congress to confer a right of action to compel production of the

information.

74 The issue in Flast and its predecessor, Frothingham, supra, related solely to the

standing of a federal taxpayer to challenge allegedly unconstitutional exercisesof the taxing and spending power. The question in those cases was under what

circumstances a federal taxpayer whose interest stemmed solely from the taxes

he paid to the Treasury '(would) be deemed to have the personal stake and

interest that impart the necessary concrete adverseness to such litigation so that

standing can be conferred on the taxpayer qua taxpayer consistent with the

constitutional limitations of Article III.' 392 U.S., at 101, 88 S.Ct., at 1953. But

the 'nexus' criteria developed in Flast were not intended as a litmus test to

resolve all conceivable standing questions in the federal courts; they were nomore than a response to the problem of taxpayer standing to challenge federal

legislation enacted in the exercise of the taxing and spending power of

Congress.

75 Richardson is not asserting that a taxing and spending program exceeds

Congress' delegated power or violates a constitutional limitation on such power.

Indeed, the constitutional provision that underlies his claim does not purport to

limit the power of the Federal Government in any respect, but, according toRichardson, simply imposes an affirmative duty on the Government with

respect to all taxpayers or citizen-voters of the Republic. Thus, the nexus

analysis of Flast is simply not relevant to the standing question raised in this

case.

76 The Court also seems to say that this case is not justiciable because it involves a

political question. Ante, at 179. This is an issue that is not before us. The

'Question Presented' in the Government's petition for certiorari was therespondent's 'standing to challenge the provisions of the Central Intelligence

Agency Act which provide that appropriations to and expenditures by that

Agency shall not be made public, on the ground that such secrecy contravenes


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Respondent's complaint alleged that he was 'a member of the electorate, and a

loyal citizen of the United States.' At the same time, he states that he 'does not

challenge the formulation of the issue contained in the petition for certiorari.'

Brief for Respondent in Opposition to Pet. for Cert. 1. The question presentedthere was: 'Whether a federal taxpayer has standing to challenge the provisions

of the Central Intelligence Agency Act which provide that appropriations to and

expenditures by that Agency shall not be made public, on the ground that such

Article I, section 9, clause 7 of the Constitution.'3 The issue of the justiciability

of the respondent's claim was thus not presented in the petition for certiorari,

and it was not argued in the briefs.4 At oral argument, in response to questions

about whether the Government was asking this Court to rule on the

justiciability of the respondent's claim, the following colloquy occurred

between the Court and the Solicitor General:

77 'MR. BORK: . . . I think the Court of Appeals was correct that the political

question issue could be resolved much more effectively if we were in the full

merits of the case than we can at this stage. I think standing is all that really can

be effectively discussed in the posture of the case now.

78 'Q: . . . (I)f we disagree with you on standing, the Government agrees then that

the case should go back to the District Court?

79 'MR. BORK: I think that is correct.' The Solicitor General's answer was clearly

right. '(W)hen standing is placed in issue in a case, the question is whether the

person whose standing is callenged is a proper party to request an adjudication

of a particular issue and not whether the issue itself is justiciable.' Flast, supra,

at 99—100, 88 S.Ct., at 1952.

80 On the merits, I presume that the Government's position would be that theStatement and Account Clause of the Constitution does not impose an

affirmative duty upon it; that any such duty does not in any event run to

Richardson; that any such duty is subject to legislative qualifications, one of

which is applicable here; and that the question involved is political and thus not

justiciable. Richardson might ultimately be thrown out of court on any one of

these grounds, or some other. But to say that he might ultimately lose his

lawsuit certainly does not mean that he had no standing to bring it.

81 For the reasons expressed, I believe that Richardson had standing to bring this

action. Accordingly, I would affirm the judgment of the Court of Appeals.

1


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secrecy contravenes Article I, section 9, clause 7 of the Constitution.' Pet. for

Cert. 2.

App. 15—16. Respondent's complaint also asked for a three-judge district court

and this application was denied by a single District Judge with directions to

place the case on the calendar in the usual manner. The Court of Appeals, in the

judgment under review, ordered that, on remand, the case be considered by athree-judge court. The District Court has granted a stay of respondent's motion

to convene a three-judge court, pending disposition of this petition for writ of

certiorari. On September 26, 1972, the Third Circuit denied a petition for

mandamus, filed by respondent, to compel the immediate convening of a three-

judge court.

The majority found that the respondent had standing to bring this suit as a

taxpayer. One judge held that he had standing as a citizen. This case was

originally argued before a panel consisting of two Circuit Judges and one

District Judge sitting by designation. After a second round of briefs, the Court

of Appeals determined sua sponte to hear the case en banc without further

argument. The District Judge sat with the Court of Appeals en banc. This point

was not raised in the question presented in the petition for certiorari but the

Solicitor General, in a footnote, called attention to the District Judge's

participation. He expressed the view that, although 28 U.S.C. § 46(c) limits en

banc hearings to circuit judges in active service (and any retired circuit judge

who participated in the initial hearing), the error was harmless. In these

circumstances we need not reach the question.

397 U.S., at 151, 90 S.Ct., at 829. See also K. Davis, Administrative Law

Treatise § 22.09—6, p. 753 (Supp.1970).

In Frothingham, the plaintiff sought to enjoin enforcement of the Federal

Maternity Act of 1921, 42 Stat. 224, which provided for financial grants to

States with programs for reducing maternal and infant mortality. She allegedviolation of the Fifth Amendment's Due Process Clause on the ground that the

legislation encroached on an area reserved to the States.

In some cases, the operative effect of this 'look at the substantive issues' could

lead to the conclusion that the 'substantive issues' were nonjusticiable and in

consequence no one would have standing. See Gilligan v. Morgan, 413 U.S. 1,

9, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973); Flast v. Cohen, 392 U.S. 83, 95,

88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968); Poe v. Ullman, 367 U.S. 497, 508 —509, 81 S.Ct. 1752, 1758—1759, 6 L.Ed.2d 989 (1961).

See 28 U.S.C. § 537 (Federal Bureau of Investigation); 31 U.S.C. § 107

(foreign affairs); 42 U.S.C. § 2017(b) (Atomic Energy Commission).

2

3

4

5

6

7


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Congress has taken notice of the need of the public for more information

concerning governmental operations, but at the same time it has continued

traditional restraints on disclosure of confidential information. See Freedom of

Information Act, 5 U.S.C. § 552; Environmental Protection Agency v. Mink,

410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

The Court of Appeals thus appeared to rely on Association of Data ProcessingService Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d

184 (1970). Abstracting some general language of that opinion from the setting

and controlling facts of that case, the Court of Appeals overlooked the crucial

factor that standing in that case arose under a specific statute, Bank Service

Corporation Act of 1962, 76 Stat. 1132, 12 U.S.C. § 1861. The petitioners in

Data Processing alleged competitive economic injury to private business

enterprise due to a ruling by the Comptroller of the Currency permitting

national banks to sell their data processing services to other banks and to bank customers whose patronage the data processing companies sought. We

recognized standing for those private business proprietors who were engaged in

selling the same kind of services the Comptroller allowed banks to sell; we held

only that the claims of impermissible competition were 'arguably . . . within the

zone of interests protected' by § 4 of the Bank Service Corporation Act. 397

U.S., at 156, 90 S.Ct., at 831. In short, Congress had provided competitor

standing. The Court saw no indication that Congress had sought to preclude

judicial review of administrative rulings of the Comptroller of the Currency as

to the limitations Congress placed on national banks.

'No Senator or Representative shall, during the Time for which he was elected,

be appointed to any civil Office under the Authority of the United States, which

shall have been created, or the Emoluments whereof shall have been encreased

during such time . . ..'

Although we need not reach or decide precisely what is meant by 'a regular

Statement and Account,' it is clear that Congress has plenary power to exactany reporting and accounting it considers appropriate in the public interest. It is

therefore open to serious question whether the Framers of the Constitution ever

imagined that general directives to the Congress or the Executive would be

subject to enforcement by an individual citizen. While the available evidence is

neither qualitatively nor quantitatively conclusive, historical analysis of the

genesis of cl. 7 suggests that it was intended to permit some degree of secrecy

of governmental operations. The ultimate weapon of enforcement available to

the Congress would, of course, be the 'power of the purse.' Independent of thestatute here challenged by respondent, Congress could grant standing to

taxpayers or citizens, or both, limited, of course, by the 'cases' and

'controversies' provisions of Art. III.

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Not controlling, but surely not umimportant, are nearly two centuries of

acceptance of a reading of cl. 7 as vesting in Congress plenary power to spell

out the details of precisely when and with what specificity Executive agencies

must report the expenditure of appropriated funds and to exempt certain secret

activities from comprehensive public reporting. See 2 M. Farrand, The Records

of the Federal Convention of 1787, pp. 618—619 (1911); 3 id., at 326—327; 3

J. Elliot, Debates on the Federal Constitution 462 (1836); D. Miller, SecretStatutes of the United States 10 (1918).

See also, e.g., Barlow v. Collins, 397 U.S. 159, 170—171, 90 S.Ct. 832, 839—

840, 25 L.Ed.2d 192 (1970) (Brennan, J., dissenting); Scott, Standing in the

Supreme Court—A Functional Analysis, 86 Harv.l.Rev. 645, 658 (1973). The

test announced in Baker and reiterated in Flast reflects how far the Court has

moved in recent years in relaxing standing restraints. In Frothingham v. Mellon,

262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), for example, the Courtdeclared that to permit a federal taxpayer suit 'would be not to decide a judicial

controversy, but to assume a position of authority over the governmental acts of

another and co-equal department, an authority which plainly we do not possess.'

Id., at 489, 43 S.Ct., at 601. And in denying standing to citizens and taxpayers

seeking to bring suit to invalidate the Nineteenth Amendment in Fairchild v.

Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499 (1922), the Court stated:

'It is frankly a proceeding to have the Nineteenth Amendment declared void. In

form it is a bill in equity; but it is not a case within the meaning of § 2 of Article

III of the Constitution . . ..' Id., at 129, 42 S.Ct., at 275.

Mr. Justice Harlan's criticisms of the Court's analysis in Flast have been echoed

by several commentators. E.g., Scott, supra, n. 1, at 660—662; Davis, Standing:

Taxpayers and Others, 35 U.Chi.L.Rev. 601, 604—607 (1968). As Professor

Scott notes:

'(The Flast 'nexus' test) can be understood as an expedient by a court retreatingfrom the absolute barrier of Frothingham, but not sure of how far to go and

desirous of a formula that would enable it to make case by case determinations

in the future. By any other standard, however, it is untenable.' 86 Harv.L.Rev.,

at 661.

But see Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 18, 20—21, 62 S.Ct.

875, 884—885, 86 L.Ed. 1229 (1942) (Douglas, J., dissenting). Mr. Justice

BRENNAN's view, see 418 U.S., at 237—238, 94 S.Ct. at 2962—2963, thatfederal taxpayers are able to meet the 'injury-in-fact' test that he articulated in

Barlow v. Collins, 397 U.S., at 167—173, 90 S.Ct., at 838—842, renders his

position, for me at least, indistinguishable from that of Mr. Justice DOUGLAS.

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Furthermore, I think that Mr. Justice BRENNAN has modified the standard he

identified in Barlow by finding it satisfied in this case. It is a considerable step

from the 'distinctive and discriminating' economic injury alleged in Barlow, see

Id., at 172 n. 5, 90 S.Ct., at 841, to the generalized interest of a taxpayer or

citizen, as Mr. Justice Brennan appears to have acknowledged in his opinion in

that case. Ibid.

In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), Mr.

Justice Stewart based his concurrence in the majority's opinion on the view that

the Establishment Clause constitutes an explicit prohibition on the taxing and

spending power:

'Because that clause plainly prohibits taxing and spending in aid of religion,

every taxpayer can claim a personal constitutional right not to be taxed for the

support of a religious institution. The present case is thus readily

distinguishable from Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67

L.Ed. 1078, where the taxpayer did not rely on an explicit constitutional

prohibition but instead questioned the scope of the powers delegated to the

national legislature by Article I of the Constitution.' 392 U.S., at 114, 88 S.Ct.,

at 1960. (Emphasis supplied.)

One commentator, who espouses a broadening of standing in what he refers to

as 'public actions,' apparently shares this difficulty. See L. Jaffe, Judicial

Control of Administrative Action 484 (1965):

'(T)he ability of a taxpayer or citizen to bring a public action) should not depend

on whether the question official conduct is of a positive or negative character,

that is, whether it consist of the performance of an improper act or the failure to

fulfill a duty.'

Such an approach might well lead to problems of classification that would

divert attention from the fundamental question of whether public actions are anappropriate matter for the federal courts. And, if distinctions between

constitutional prohibitions and duties are to make a difference, there are certain

to be some incongruous rules as to when such a public action may be brought.

This is apparent when one attempts to categorize the provisions of the

Constitution primarily addressed at limiting the powers of the National

Government—Art. I, § 9, and the Bill of Rights. All of the clauses of Art. I, § 9,

except the seventh, which is at issue here, are stated as prohibitions. In fact the

seventh clause is in part a prohibition against expenditures of public money inthe absence of appropriations and in part an affirmative duty to publish

periodically an account of such expenditures. The rationale for according

special treatment solely to one-half of Art. I, § 9, cl. 7, and not to the other and

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not to the remaining clauses of Art. I, § 9, is not immediately apparent.

The same observation may be made of the Bill of Rights. The First Amendment

through the Fifth, and Eighth, and possibly the Tenth are stated in terms of

prohibitions. The Sixth Amendment and portions of the Seventh can be

classified as duties. The Ninth defies classification. Rational rules for standing

in public actions are, it seems to me, unlikely to emerge from an effort to makethe format of a particular Amendment determinative.

One commentator predicted this phenomenon and its possible implications at

the outset of the past decade of dramatic changes in standing doctrine:

'(J)udicial power expands as the requirements of standing are relaxed. . . . (I)f

the so-called public action . . . were allowed with respect to constitutional

challenges to legislation, then the halls of Congress and of the state legislatures

would become with regularity only Act I of any contest to enact legislation

involving public officials in its enforcement or application. Act II would, with

the usual brief interlude, follow in the courts. . . .' Brown, Quis Custodiet Ipsos

Custodes?—The School-Prayer Cases, 1963 Sup.Ct.Rev. 1—16.

Cf. A Bickel, The Least Dangerous Branch 122 (1962).

Randolph's Resolutions, also referred to as the Virginia Plan, served as the

'matrix' for the document ultimately developed by the ConstitutionalConvention. See 1 J. Goebel, History of the Supreme Court of the United States

204 (1971). The eighth of Mr. Randolph's 15 proposals was as follows:

'8. Resd. that the Executive and a convenient number of the National Judiciary,

ought to compose a council of revision with authority to examine every act of

the National Legislature before it shall operate, & every act of a particular

Legislature before a Negative thereon shall be final; and that the dissent of the

said

Council shall amount to a rejection, unless the Act of the National Legislature

be again passed, or that of a particular Legislature be again negatived by (an

unspecified number) of the members of each branch.' 1 M. Farrand, The

Records of the Federal Convention of 1787, p. 21 (1911) (hereafter Farrand).

See 1 J. Elliot on the Federal Constitution 144 (1836). Madison ably supported

the proposal, but it was defeated on three separate votes. 1 Farrand 140, 2

Farrand 71—72, 298.

The analogy between the proposed Council of Revision and unrestricted

taxpayer or citizen standing is not complete. For example, Randolph proposed

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to link the Judiciary directly to the Executive, in large measure to enhance the

Executive and to protect it from legislative encroachments. See, e.g., 1 Farrand

108, 138; 2 Farrand 74, 79. Thus, reliance on the Framers' rejection of the

Council must be approached with caution. Nevertheless, the arguments

advanced at the Convention in support of and in opposition to the Council

provide an interesting parallel to present contentions regarding unrestrained

public actions. For example, Madison spoke of the 'good' that would 'proceedfrom the perspicuity, the conciseness, and the systematic character wch. the

Code of laws wd. receive from the Judiciary talents.' 1 Farrand 139. He

declared that the proposal would be useful 'to restrain the Legislature from

encroaching on the other co-ordinate Departments, or on the rights of the

people at large; or from passing laws unwise in their principle, or incorrect in

their form . . .,' ibid., and that such a system would be 'useful to the Community

at large as an additional check' against unwise legislative measures. 2 Farrand

74. Those opposed to the proposal, including Gerry, Martin, and Rutledge, preferred to rely 'on the Representatives of the people as the guardians of their

Rights & interests.' Id., at 75. Judges were not presumed 'to possess any

peculiar knowledge of the mere policy of public measures . . .,' id., at 73, or any

'higher . . . degree' of knowledge of mankind and of 'Legislative affairs . . ..' Id.,

at 76. It was 'necessary that the Supreme Judiciary should have the confidence

of the people . . .,' id., at 76—77, and this would 'soon be lost, if they are

employed in the task of remonstrating

agst. popular measures of the Legislature.' Id., at 77. Moreover, the 'Judges

ought never to give their opinion on a law till it comes before them.' Id., at 80.

The arguments adduced at the Convention in opposition to the Council of

Revision ultimately prevailed. I believe that analogous arguments should guide

us in refusing as a general matter to entertain public actions.

Some Western European democracies have experimented with forms of

constitutional judicial review in the abstract, see e.g., M. Cappelletti, JudicialReview in the Contemporary World 71—72 (1971), but that has not been our

experience, and I think for good reasons. Cf. Bickel, supra, n. 8, at 115—116.

'It is an established principle that to entitle a private individual to invoke the

judicial power to determine the validity of executive or legislative action he

must show that he has sustained or is immediately in danger of sustaining a

direct injury as the result of that action and it is not sufficient that he has merely

a general interest common to all members of the public.'

'The party who invokes the power (of the Judiciary to declare a statute

unconstitutional) must be able to show not only that the statute is invalid but

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that he has sustained or is immediately in danger of sustaining some direct

injury as the result of its enforcement, and not merely that he suffers in some

indefinite way in common with people generally.'

'(Standing will be denied where a plaintiff) has only the right, possessed by

every citizen, to require that the government be administered according to law

and that the public moneys be not wasted.'

'Save in a few instances where, by statute or the settled practice of the courts,

the plaintiff is permitted to sue for the benefit of another, he is bund to show an

interest in the suit personal to himself, and even in a proceeding which he

prosecutes for the benefit of the public, as, for example, in cases of nuisance, he

must generally aver an injury peculiar to himself, as distinguished from the

great body of his fellow citizens.'

See ibid.:

'Although the law of standing has been greatly changed in the last 10 years, we

have steadfastly adhered to the requirement that, at least in the absence of a

statute expressly conferring standing, federal plaintiffs must allege some

threatened or actual injury resulting from the putatively illegal action before a

federal court may assume jurisdiction.' (Footnotes omitted.)

For example, as the Court noted in Sierra Club v. Morton, 405 U.S. 727, 92S.Ct. 1361, 31 L.Ed.2d 636 (1972), 'if any group with a bona fide 'special

interest' could initiate . . . litigation, it is difficult to perceive why any

individual citizen with the same bona fide special interest would not also be

entitled to do so.' Id., at 739—740, 92 S.Ct., at 1368. The clear implication is

that allowing 'any individual citizen with (a) . . . bona fide special interest' to

trigger federal court litigation is a result to be avoided. All standing cases, even

the most recent ones, include references to the need for particularized injury or

similar language. None of them as yet has equated the interest of a taxpayer or citizen, suing in that status alone, with the particularized interest that standing

doctrine has traditionally demanded. To take that step, it appears to me, would

render the requirement of direct or immediate injury meaningless and would

reduce the Court's consistent insistence on such an injury to mere talk.

Baker v. Carr may have a special claim to sui generis status. It was perhaps a

necessary response to the manifest distortion of democratic principles practiced

by malapportioned legislatures and to abuses of the political system so

pervasive as to undermine democratic processes. Flast v. Cohen may also have

been a reaction to what appeared at the time as an immutable political logjam

that included unsuccessful efforts to confer specific statutory grants of standing.

See, e.g., C. Wright, The Law of Federal Courts 40 (2d ed. 1970). Cf. 392 U.S.,

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at 115—116, 88 S.Ct., at 1960—1961 (Fortas, J., concurring).

The doctrine of standing has always reflected prudential as well as

constitutional limitations. Indeed, it might be said that the correct reading of the

Flast nexus test is as a prudential limit, given the Baker v. Carr definition of the

constitutional bare minima. The same is undoubtedly true of, for example, the

second test created in Association of Data Processing Service Organizations,Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)

—'whether the interest sought to be protected by the complainant is arguably

within the zone of interests to be protected or regulated by the statute or

constitutional guarantee in question.' See also Barrows v. Jackson,346 U.S. 249,

255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953); 'Apart from the

(constitutional) requirement, this Court has developed a complementary rule of

self-restraint for its own governance . . . which ordinarily precludes a person

from challenging the constitutionality of state action by invoking the rights of others.'

united states v. richardson, 418 u.s. 166 (1974)

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